Does U.S. Federal Employment Law Now Cover Caste Discrimination Based on Untouchability?: If All Else Fails There is the Possible Application of Bostock v. Clayton County

58 Pages Posted: 31 Mar 2021 Last revised: 14 Sep 2022

See all articles by Kevin D. Brown

Kevin D. Brown

Indiana University School of Law-Bloomington

Lalit Khandare

Pacific University Oregon

Annapurna Waughray

Manchester Law School, Manchester Metropolitan University; Manchester Law School, Manchester Metropolitan University

Kenneth Glenn Dau-Schmidt

Indiana University, Maurer School of Law

Theodore Shaw

affiliation not provided to SSRN

Date Written: March 17, 2021

Abstract

This article discusses the issue of whether a victim of caste discrimination based on untouchability can assert a claim of intentional employment discrimination under Title VII or Section 1981. This article contends that there are legitimate arguments that this form of discrimination is a form of religious discrimination under Title VII. The question of whether caste discrimination is a form of race or national origin discrimination under Title VII or Section 1981 depends upon how the courts apply these definitions to caste discrimination based on untouchability. There are legitimate arguments that this form of discrimination is recognized within the concept of race discrimination or national origin discrimination under Title VII or race discrimination under Section 1981. However, if courts reject these conclusions, the approach adopted by the Supreme Court in its June 2020 decision in Bostock v Clayton County would provide another potent legal argument for recognizing such discrimination.

The Bostock approach avoids the question of whether caste discrimination based on untouchability is a form of national origin or racial discrimination. This approach draws on the Supreme Court’s recognition that the “but-for” causation standard applies under both Title VII and Section 1981. The but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. And, multiple but-for causes can exist. Applying this approach to intentional employment discrimination against gays, lesbians or transgender individuals, the Supreme Court pointed out that such a person’s sex is inextricably intertwined with their other status. The Court concluded that discrimination against a person because they are gay, lesbian or transgender means that you are discriminating against such a person based on that status, which is not protected, and their sex, which is. Thus, under the Bostock approach, because all of those who are victims of caste discrimination based on untouchability are from Asia, their caste is inextricably intertwined with their race. As a result, when Dalits are victims of intentional discrimination based on untouchabilty, the discriminator is motivated to discriminate against them because of their caste, which is not a protected trait, and their race, which is. Thus, intentional caste discrimination inevitably also involves race discrimination under both Title VII and Section 1981.

Keywords: discrimination, caste, race, ethnicity, religion, Title VII, Civil Rights Act, section 1981, Bostock, constitutional rights, civil rights

JEL Classification: J70, J71, J78, K31

Suggested Citation

Brown, Kevin D. and Khandare, Lalit and Waughray, Annapurna Deborah and Dau-Schmidt, Kenneth Glenn and Shaw, Theodore, Does U.S. Federal Employment Law Now Cover Caste Discrimination Based on Untouchability?: If All Else Fails There is the Possible Application of Bostock v. Clayton County (March 17, 2021). New York University Review of Law & Social Change, Vol. 46, pp. 117-174 (2022), Available at SSRN: https://ssrn.com/abstract=3816265 or http://dx.doi.org/10.2139/ssrn.3816265

Kevin D. Brown

Indiana University School of Law-Bloomington ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

Lalit Khandare

Pacific University Oregon ( email )

2043 College Way
Forest Grove, OR 97116
United States
541-632-8827 (Phone)

HOME PAGE: http://https://www.pacificu.edu/about/directory/people/lalit-khandare-phd-msw-mphil

Annapurna Deborah Waughray

Manchester Law School, Manchester Metropolitan University ( email )

Burslem Building, South All Saints Campus
Lower Ormond Street
Manchester, Lancashire M15 6HB
United Kingdom

Manchester Law School, Manchester Metropolitan University ( email )

Burslem Building, South All Saints Campus
Lower Ormond Street
Manchester, Lancashire M15 6HB
United Kingdom

Kenneth Glenn Dau-Schmidt (Contact Author)

Indiana University, Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States
812-855-0697 (Phone)
812-855-0555 (Fax)

Theodore Shaw

affiliation not provided to SSRN

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